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Wednesday, 3 August 2016

When any Court makes a decision to issue
a custodial sentence it does not do so lightly.If a person’s freedom is at risk then a high level of proof is required
to justify removing that freedom.In
family cases, a custodial sentence can be issued if, for example, one party is
in contempt of Court by failing to provide information under a Court Order or
by failing to make payments in accordance with the terms of a financial order.The Court will always give the party in
contempt an opportunity to purge themselves of that contempt by providing the
information or making the payment within a reasonable deadline.If the party still does not comply then a
custodial sentence can be imposed.In
the case of non-payment the payee can make an application for a judgment
summons and the Court will consider whether a short custodial sentence is
appropriate for the defaulting party. The Court will not take such a step
unless it is satisfied that the defaulting party has the means to pay, or had
the means when the payment fell due, and has wilfully or neglectfully not paid.
One might expect the same high standard of proof to apply to this test as in
criminal proceedings however that is not the case.

In the case of Magliaccio v Magliaccio [2016] EWHC 1055 (Fam), a former wife made an application for a
judgment summons in respect of arrears of child maintenance and an unpaid costs
order.The parties were divorced and a
financial order had been made in which the husband was to pay the wife
maintenance for herself and their child by way of periodical payments.The husband had failed to pay and arrears of
£64,000 had accrued.The wife had
returned the matter to Court for enforcement and it was during those
proceedings that a settlement was reached and a further order was made.The new order stated that the husband was to
pay a total of £19,000 consisting of £13,500 for the outstanding maintenance
payments and £5,500 towards the wife’s costs.There was also to be continued child maintenance of £1,150 per month
with maintenance for the wife dropping to a nominal level.

The husband paid the £13,500 for the
arrears but did not pay the sum ordered for the wife’s costs.He also took it upon himself to reduce the
periodical payments for the child below the level ordered. The wife once again returned the matter to
Court and by the time it came before Mr Justice Mostyn further arrears of
£4,100 had accrued.The husband did
provide an explanation, by way of email, as to why he had not made the
payments. He claimed that he was facing financial hardship because he was soon
to be made redundant and because he had recently remarried. He also thought
that he should not have to pay maintenance for the month that the child visited
him. Significantly, the husband failed to supply any evidence to substantiate
his position.

Mostyn J was not impressed. He said,
referring to the husband’s e-mails:

“These writings show a profound
misunderstanding of obligations under an Order of a Court of law.An Order of a Court of law which provides the
child periodical payments is not some indicative suggestion; it is a judgment
that must be complied with.

By the husband’s writings he seems to believe
that because he has in mind that there are circumstances which might justify a
variation application that he is entitled unilaterally to reduce the payments
to what he thinks is just; not what the Court has determined to be just. This is completely unacceptable and if
such behaviour were to be tolerated it would strike at the very heart of the
rule of law.” (paras 17 & 18)

Mostyn J went on to consider the legal
position in relation to the judgment summons for non-payment of periodical
payments.Specifically, he considered Section
5 of the Debtors Act 1869 which sets out that a person may only be punished
by imprisonment in relation to certain specified unpaid debts. Mostyn J satisfied
himself that non-payment of periodical payments ordered in the context of
matrimonial proceedings were enforceable in this way.This was by virtue of paragraph 2A ofSchedule 8 of the Administration of Justice Act 1970.

Mostyn J had previously considered this very
issue in the case of Bhura v Bhura [2013] 2 FLR 44 in which he noted
that the Court of Appeal had provided principles to consider in the case of Karoonianv CMEC [2012] EWCA Civ 1379 which he was bound to follow. He specifically
identified two principles as being relevant which he set out are set in his Judgment.

These were:

“It
is essential that the Applicant adduces sufficient evidence to establish at
least a case to answer. Generally speaking, this need not be an elaborate
exercise.Proof of the Order and of
non-payment will likely give rise to that inference which establishes the case
to answer”; and

“If
the Applicant establishes a case to answer and evidential burden shifts to the
Respondent to answer it if he fails to discharge that evidential burden then
the terms of Section 5 will be found proved against him or her to a requisite
standard”.

(para. 23)

This may seem straightforward
and sensible in light of circumstances where there has clearly been a failure
to pay.However, in the very recent case of Prest
v Prest [2016] 1 FLR 773 Lord Justice McFarlane made some comments which
brought these principles into doubt.

McFarlane LJ’s concern was that when
considering issuing a custodial sentence for non-payment it was not sufficient
to rely upon findings in family proceedings as these would have been made to a
civil standard of proof (balance of probabilities) rather than a criminal
standard (beyond reasonable doubt).McFarlane LJ pointed out that if the case to answer had been proven then
it must be decided whether the Respondent has had since the date of the
Judgment the means to pay the sum due and whether he had refused or neglected
to pay the sum.He said that this should
be proved to the criminal standard and that the burden of proof should at all
times remain on the Applicant.He went
even further to say that the Respondent could not be compelled to give
evidence.

Mostyn J considered McFarlane LJ’s
comments and rejected them outright.He
pointed out that the consequences of McFarlane LJ’s approach would be that
every fact would need to be proved from scratch to a much higher standard than had
been required in the original proceedings.Mostyn J satisfied himself that he had relied on binding principles from
the Court of Appeal and relied on comments from Lord Justice Richards who had,
in Karoonian v CMEC, considered the issue from a human rights
perspective. He stated that, in cases where there was clearly a case to answer
there would be an evidential burden on the Defendant to answer it and that was
unobjectionable to Article 6 (referring to the right to a fair trial as set out
in the European Convention on Human Rights). In following this approach Mostyn J made it
quite clear that the criminal standard of proof is not required in order to make
a committal order for a breach of non-payment of periodical payments in
matrimonial proceedings.

It is difficult to see how MacFarlane
LJ’s approach would not bring the entire system of enforcement to a grinding
halt. It would lead to extensive enforcement proceedings that could require
evidential investigation above and beyond what had been required to make the
original order, a re-trial to a higher standard.

Perhaps the nature of financial evidence
in family proceedings is also relevant. In the earlier enforcement proceedings,
the husband had provided the evidence which the Court had relied on to
determine that the husband did indeed have the means to pay the maintenance,
his Form E. The husband had completed this himself and signed a statement of
truth to confirm the contents were accurate. The husband had disclosed in this
form that he held significant funds and the email evidence he had presented
prior to the judgment summons hearing did nothing to address that but simply
stated that he did not think he should pay because of an impending redundancy
and further financial hardship by virtue of the fact that he had recently
remarried. Mostyn J therefore had no hesitation in imposing a suspended 14 day
custodial sentence on the husband.

Mostyn J has given a definitive answer
on the issue of the burden and standard of proof in these circumstances. However,
should care be taken when considering how to deal with these issues
particularly in light of the increase in Litigants in Person who might not
appreciate the evidential requirements on them or the serious consequences of
failing to discharge that burden? The husband in this case was unrepresented
and had presented a case without due reference to the legal principles being
considered. He may have had “a profound
misunderstanding” of the obligations under a Court Order but had he
received legal advice he might have been able to correctly address these and
avoid the committal order being made against him. Again, this needs to be
balanced against the unquestionable need to ensure that parties comply with
Court Orders.

Tuesday, 15 March 2016

We are entitled to a certain amount of privacy. This is enshrined and supported by Article 8 of
the European Convention on Human Rights.

The act of marriage itself though is not private. It
must take place in a public building, notice must be given and witnesses must
be present. Beyond that, however, no one else is entitled to know the details
of how a couple conduct their marriage unless, that is, they choose to share
them or they live out their private lives in the public sphere.

Divorce also requires a certain amount of publicity.
Court proceedings must be started and the marriage is brought to an end first
by the grant of decree nisi and finally by the granting of a decree absolute at
least six weeks later. Information on the making of these orders is available
to the public. The procedural side of a divorce is seldom contentious with
court proceedings relating to the division of finances or child care
arrangements being much more likely.

Financial proceedings require a comprehensive and
invasive look into the financial lives of both parties. The standard of
disclosure is high. The Court requires a full, frank and honest picture of the
parties economic life to be able to adjudicate on a fair outcome. The standard
format to provide this disclosure (Form E) runs to 28 pages and requires
documents to be attached which include recent payslips, banks statements and
pension information.

The case related to the financial proceedings in the
divorce of Nicole Appleton and Liam Gallagher in which they jointly made
application to exclude the press from the financial proceedings. There was a
great deal of public interest in their divorce due to the celebrity status of
the couple. In the case of most divorces the press will have little interest in
attending a hearing but when celebrities divorce the case is very different. Mostyn
J reviewed the legal position and frame work for considering when the press
should be allowed access to such proceedings and, if so, to what extent.

The legal position is found in Family Proceedure Rule 27.11 which states that all hearings are held in private, this
prevents the public from attending. FPR 27.11(2) provides a list of who
may be present at these private hearings, which includes “duly accredited representatives of [the press]”. It should be noted
that the court also has the power to exclude any member of the press, or indeed
anyone else, if it sees fit (FPR 27.11(3)).

The press are also limited as to how they report the
case. It is a contempt of court if they repeat outside of court anything that
is said before the court. This applies to the parties as well. The press are
also not allowed access to any documents. So the parties can be assured that
journalists will not be able to go through their bank statements. Indeed,
Mostyn J commented that, when the press is allowed to attend a hearing, their
presence is more akin to that of an observer or watchdog.

What then of the judgement itself? Matrimonial
judgments do not have to be made public by virtue of the Judicial Proceedings (Regulation of Reports) Act 1926. Such judgments can contain a
great deal of personal information which would undoubtedly be an invasive
breach of the right to privacy of the parties. That breach is not, in itself, a
bar to judgments being published. The court must balance the parties’ right to
privacy against the right of freedom of expression. In family proceedings a
great deal of weight is given to the right of privacy but this can be countered
where:

These issues do
not just apply to celebrities. Shortly after his decision judgment in Appleton& Gallagher, Mostyn J made public a judgment in financial proceedings
which involved no element of celebrity and no information about the case was
already in circulation. The case was Veluppillai & Others v Veluppillai[2015] EWHC 3095 (Fam) which involved a husband who was a
litigant in person and whose conduct throughout the case had been particularly
bad. At paragraph 17 of his judgement Mostyn J stated:

“There is no doubt the husband's misconduct has been at the extreme end
of the spectrum. It is in the public interest for his conduct to be exposed.
The public should be aware of the scale of problems that courts administering
justice and implementing the rule of law have to face at the hands of
unrepresented and malevolent litigants determined to do everything they can to
destroy the process. I appreciate that the wife, who is wholly innocent, will
lose her rights to privacy by virtue of this judgment being published without
anonymisation but in my opinion the public interest in the whole truth being
known outweighs her privacy rights.”

This shows that, when considering whether or not to
publish a judgment, the balancing act is not just between the right to privacy
and freedom of expression but also extends to the public interest and can be
applied to any case being considered by the courts.

Arguably, there will always be some uncertainty as to
what private information may be made public if a case goes to a final hearing. Different
approaches between judges adds to that uncertainty and there are calls for further
guidance to clarify the position. If nothing else, this issue highlights the
benefits of resolving financial claims outside of court.

This post is based on an article written for the Spring
Law Update, February 2016. You can read the original article here.

Thursday, 4 February 2016

In the context of the ongoing debate about
the introduction of no fault divorce, it may be instructive to reflect on the
experience in Australia, where a no fault divorce system, with similarities to
that presently before the House of Commons, has been operating successfully for
many years.

Australia has had no fault divorce since
the commencement of its Family Law Act
1975 on 5 January 1976. The sole ground for divorce in Australia is that
the marriage has broken down irretrievably. That ground can be established if,
and only if, the court hearing the application for a divorce order is satisfied
that the parties separated and thereafter lived separately and apart for a
continuous period of not less than 12 months immediately preceding the date of
the filing of the application. Either party to the marriage can unilaterally
bring about a separation.

The granting of a divorce order is almost
automatic upon an application being made following 12 months’ separation,
subject to a small number of exceptions, including that the court will not make
a divorce order if it is satisfied that there is a reasonable likelihood of
cohabitation being resumed, and a requirement that the court consider whether proper
arrangements in all the circumstances have been made for the care, welfare and
development of any children of the marriage who have not attained the age of 18
years.

An application for divorce may be made by
one party to the marriage or by both parties jointly. Where a sole application
is made, it is necessary to prove that the application has been served on the
other party, but that party need not participate. Divorce applications are
dealt with by way of a short, largely administrative court hearing. Where there
are no children under the age of 18 or where a joint application is made, a
court appearance is generally not required at all.

There is no role for fault-based
allegations in divorce applications in Australia. Conduct is not legally
relevant to the application and the process provides no scope for the airing of
allegations of poor behaviour or marital misconduct. As such, the process
enables parties to end their marriages in an accessible, dignified and
non-adversarial manner which respects their rights to autonomy. The no fault
divorce regime in Australia does not invite finger-pointing, cause humiliation
or facilitate an increase in hostility which could damage financial
negotiations and, more importantly, poison co-parenting relationships. The
absence of disputes as to marital fault in the context of divorce applications
is also beneficial in terms of the efficient use of court time and resources
and the limited cost, both economic and emotional, to the parties. Although
disputes between former spouses continue to be played out before the courts in
the context of applications concerning financial and parenting matters, these
disputes are not exacerbated by fault-based allegations in the context of
divorce applications.

No fault divorce was controversial when it
was first introduced in Australia and was considered by many to be a radical
step. However, its operation has been successful and calls for a return to a
fault-based system are now few and far between.

Anna
Parker is an Accredited Family Law Specialist and a Partner at Nicholes Family
Lawyers in Melbourne, Australia (www.nicholeslaw.com.au).

Friday, 22 January 2016

I
first wrote about no fault divorce on this blog in June 2012 (you can read my
original post here).

Despite there being continued
support from the family law community for this reform we are now in 2016 and spouses
still have to assign blame by either citing their partner’s adultery or bad behaviour
in order to be able to issue a divorce petition immediately. The alternative is
to separate and wait two years before filing a petition which both parties
consent to. This is not appealing for those wanting to move on with their lives.

It is difficult to see how
anyone could support the current system. Even the most anodyne of accusations
can increase hostility which can damage the parties’ ability to communicate
constructively, (a significant problem if there are children involved), reduce
the chances of reaching an amicable financial settlement and increase legal
costs.

No
fault divorce could go a long way to improving matters and there may be change
on the horizon. Today (Friday 22 January 2016) the House of Commons is debating
a private members bill introduced by Conservative MP Richard Bacon which would
allow for a joint petition to be filed immediately when both parties agree that
the marriage or civil partnership has broken down irretrievably.

The Bill would amend the Matrimonial
Causes Act 1973 and The Civil Partnership Act 2004. It would also stipulate a minimum
period of 12 months between the granting of decree nisi and decree absolute as
opposed to the 6 weeks for divorcing on other grounds. Still, waiting 12 months
for the final decree in a divorce must be better than waiting two years before
you can even issue a petition. In addition, a final financial settlement could be
negotiated and approved by the court during that time, providing the parties
with better certainty as to their futures.